In re Consititution Section 225; re, National Court circuit to Bali and Vitu Island [2011] PGNC 266; N4521 (19 May 2011)

N4521

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

IN THE MATTER OF CONSTITUTION SECTION 225 AND IN THE
MATTER OF THE NATIONAL COURT CIRCUIT TO BALI & VITU ISLAND

Vitu & Bali Islands: Kawi J
2011: 15th & 19th May

CONSTITUTIONAL LAW- Performance of constitutional functions and responsibilities- Duty of the National Government and all governmental bodies and institutions to adequately resource constitutional offices- National Court circuit to Vitu and Bali Islands- Vitu and Bali Islands designated and gazetted under section 4 of the National Court Act as Court sitting areas- Court circuit hindered by lack of adequate facilities including court sitting facilities and proper buildings- No Court house- No adequate rural lock up- No accommodation for judge, Lawyers and the Court party- Simply no adequate provision of court facilities- Designation and Gazettal under section 4 of the National Court Act - the National Court must physically sit on the physical soil of Vitu and Bali Islands- The Court cannot conduct trials on board a moving object like a ship owned by the WNB Provincial Government-the boat is not part of the physical soil of Vitu Island.

Facts

Vitu and Bali Islands are designated and gazetted as National Court Sitting Areas under section 4 of the National Court Act. The Honourable Chief Justice after consultation with other judges appointed certain places throughout the country as National Court Sitting Areas. For the West New Britain Province, Bialla, Hoskins, Talasea, Bali and Vitu Islands, Gloucester, Kandrian, and Gasmata were designated as National Court Sitting areas in G4 dated 29th September 2009.The National Court did conduct its first ever criminal and civil circuit to Vitu and Bali Islands from the 13th to the 20th May 2011 where a number of criminal and civil cases were mentioned including two criminal trials. Other matters to be mentioned included cases where accused persons were either on bench warrants or those who have absconded bail. In Vitu three persons who had escaped from custody voluntarily surrendered to the judge and the Court party, while on Bali Island, six accused persons who had also absconded their bail conditions voluntarily surrendered to the judge and the Court party. In both designations there was no gazetted rural lock ups or other related facilities where such persons could be locked up. To begin with there was no court house nor a structure suitable enough for the accused persons to have their cases trialed. There was no house with adequate shower and toilet facilities to accommodate and cater for the needs of the judge and the court party. More importantly there was no Rural Lock Up gazetted under the Correctional Services Act which could hold prisoners and remandees. As a result of these lack of proper and adequate facilities the judge and the court party had to be accommodated on the ship together with accused persons and remandees. The court had to sit in a dilapidated old building to conduct the trial of The State –v- Fabian Tanghohola CR 145/2011 the first ever criminal trial to be tried on the Island of Vitu. On the day of trial, heavy rains, resulted in the place being muddy and slippery thereby hampering the movement of the judge and the Court party to move up to St. Michaels Primary School to use one of their classrooms to convene the court sittings. In these circumstances:

Held: (1) Once place is designated and gazetted as a National Court sitting area under section 4 of the National Court Act, the National Government and all governmental bodies, including Provincial and Local Level Governments have a mandatory obligation to ensure as far as is within their legal powers, to provide adequate staff and facilities to enable constitutional offices such as the National Court to perform its constitutional functions and responsibilities.

(2) Designation of a National Court Sitting Area under section 4 of the National Court Act means that the National Court must sit on the physical soil or land of that designated location. Section 4 of the Act does not contemplate the National Court sitting on a moveable object such as a ship which is not the land or physical soil of Vitu or Bali Islands such that the court can convene a hearing or conduct a trial on board.

(3) The word place as used in section 4(a) and the word location also used in section 4(b) respectively under Section 4 of the National Court Act means that the Court must physically sit on the "soil" or "land" of that place

(4) Where a declaration is made of a National Court sitting Area, in a particular Province, it is the duty of both the National Government, and the Provincial and Local Level Government of the Province and location concerned, to collaborate and consult each other to provide adequate facilities for the proper and convenient performance and discharge of the constitutional functions and responsibilities of the National Court in that designated location.

Cases cited

In the Matter of the Constitution sections23 (1), 23(2) and section 225 and In The Matter of the Operation of the National Court In the Eastern Highlands and Simbu Provinces [1990] PNGLR 82

ENFORMENT OF THE CONSTITUTION

The reasons hereunder were published by the National Court upon its first ever criminal and civil circuit to Vitu Island following the designation and declaration of Vitu Island as a National Court Sitting Area. An ex tempore judgement on this issue was delivered on board the Provincial Government owned trawler, MV Artemis IV which was anchored off the jetty on Vitu Island and part of the reasons were delivered on Bali Island. Here is my published full text of the judgement I delivered.

Counsel (appearing at the request of the Court)

Mr Anthony Kupmain, from the Public Prosecutor's Office
Mr Doko Kari & Mr Chris Thomas, from the Public Solicitor's Office

14th May, 2011

1. KAWI J: Vitu and Bali Islands in the West New Britain Province are designated as National Court sitting areas respectively. It has been so designated under Section 4 of the National Court Act and by Gazettal Notice G187 dated 29th September 2009. Section 4 of the National Court Act is stated in these terms:

S 4. Sittings and Registries of the National Court.

The Chief Justice, after consultation with other judges, shall determine-

(a) The place and frequency of sittings of the National Court; and
(b) The location and number of registries of the court.

2. The National Court commenced its' criminal and civil circuit to the Island of Vitu and Bali from the 12th to the 20th of May 2011 where several accused persons on Bench Warrant had their cases mentioned. In addition the trial of the State-v- Fabian Tanghohola CR 145/2011, which was to commence on Saturday 14th May 2011 was mentioned. But the commencement of this trial was hampered by very heavy rain making the place wet, muddy and slippery for the Judge, the three counsel and the court party to walk up to St. Michael's Primary School and use one of the classrooms to hold the first ever court session on Vitu Island.

3. As the rain continued, counsel suggested holding the court and therefore the trial on board the vessel MV Artemis IV, a vessel owned by the West New Britain Provincial Government.

4. I invited counsel to address me on the issue of whether or not a Court Session, in particular the trial of an accused person charged with a very serious indictable offence can be heard and trialed on board a moveable object such as a vessel.

5. Defence Counsel Mr Kari objected to having the matter dealt with on a boat. He submitted that when the Islands of Bali and Vitu were designated as National Court Sitting Area, it was intended to mean the physical soil or land of Vitu or Bali Islands. The vessel is a moveable object moved by engines and machines. It is not owned by the people of Vitu Island and therefore not always stationed on the Island of Vitu. Therefore it could not be described as part of the land of Vitu Island.

6. The second reason advanced by Mr Kari is that this is the first ever National court circuit to Vitu Island. The National Court, being vested with the judicial authority of the people, must be held in a building that can be accessed by the people to see just how justice is administered in Courts.

7. Mr Kupmain, counsel for the State agreed that the vessel is a moveable object. It is never stationary in one place such as on Vitu Island. And the vessel is not owned by the people of Vitu, but by the Provincial Government. Mr Kupmain submitted that the Court should consider the remoteness of Vitu Island, where access to justice services is difficult to obtain. Consequently he submitted that an exception can be made under section 4 of the National Court Act and a moveable object like a vessel can be used to hear a court case so long as it is moored or anchored on Vitu Island.

8. I have considered the submissions by the two learned counsel.

9. In my view when the island of Bali-Vitu was designated as a National Court sitting area under Section 4 of the National Court Act, such designation requires the Court to physically sit in that designated area. The word place as used in section 4(a) and the word location also used in section 4(b) respectively under Section 4 of the National Court Act clearly imply the contention that the National Court must physically sit on the soil or the land of the designated location. In my view designation of a National Court sitting area under section 4 of the National Court Act means that the Court must physically sit on the "soil" or "land" of that place. A moveable object such as a boat is not the land or the soil of Vitu Island such that the Court can sit and convene in a boat to hear the cases. Can the boat be considered as part of the land of Vitu? The answer is clearly "No". It would have been if it was owned by the people of Vitu. Here the boat "MV Artemis IV" is owned by the West New Britain Provincial Government. With virtually no facilities here on Vitu Island to accommodate the Court party, I am now compelled to apply the provisions of section 225 of the Constitution to compel the West New Britain Provincial Government to assist in the provision of adequate facilities to ensure that the National Court discharges all its' Constitutional functions and responsibilities when the Court sits in a designated location.

10. In my view it is a constitutional mockery to designate a place under section 4 of the National Court Act as a National Court Sitting Area without providing the necessary and basic facilities to assist the Court discharge its constitutional functions and responsibilities. It is pointless to so designate National Court sitting Areas without having the necessary facilities being in place for the Court to sit and perform its constitutional functions. The judicial authority of the people is vested in the National Judicial System, of which the National and Supreme Courts are at the higher end of that judicial system – see Constitution section 158(2). Section 4 of the National Court Act in so far as it provides for places to be designated as National Court sitting Areas provides an opportunity for the very people whose judicial authority is been exercised by the National Court to see and access for themselves how the court's are exercising their judicial authority. The National Court had the occasion to apply section 225 of the Constitution when Government bodies failed to provide adequate facilities to enable it to discharge its constitutional functions and responsibilities. In the Matter of the Constitution sections 23(1), 23(2) and section 225 and In The Matter of the Operation of the National Court In the Eastern Highlands and Simbu Provinces, a Criminal Circuit of the National Court was cancelled by the Chief Justice because the Secretary for Finance by an administrative fiat had cut 25 percent budgetary appropriation by the National Parliament to the National Court. With the cancellation of the criminal circuit, no criminal trials would be held in some areas for five months and trials of those on remand would be further delayed. Brunton J after citing relevant provisions of the Constitution dealing with the right of an accused person to have a fair and speedy trial held that: (1) the cancellation of the criminal circuit of the National Court would cause unreasonable delays in bringing persons committed for trial before the court contrary to section 37(3) of the Constitution.(2) The reduction of budgetary appropriation for the National Court by the administrative fiat of the Secretary for Finance was unconstitutional as being in breach of section 225 of the Constitution.

11. Section 225 of the Constitution is stated in these terms:

s.225 Provision of facilities, etc.....

Without Limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office- holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office – holders.

12. In the above case Brunton J made this helpful comment:

"Put simply court's have to remain open to the people because the constitutionally guaranteed rights of people are not written "subject to the availability of Finance" This does not mean that the courts or other Constitutional Offices must be given everything they ask for in estimates. In times of financial difficulty, there has to be restraint. But we no longer live in colonial times when administrative fiat was the rule. Colonialism is a government without responsibility. Today, we live under a written Constitution. All State acts, judicial, legislative and executive are subject to the Constitution and the Rule Of Law. There are proper constitutional procedures for bringing about variations to the budgets of the National Parliament and the National court, and there are constitutional limitations on variations to appropriations to constitutional office- holders under s.225."

13. With respect I adopt these comments as in my view they are appropriate to the circumstances of this case. In my view financial difficulties should not be an excuse or reason for governmental bodies not to provide adequate facilities to enable constitutional offices like the National Court to discharge its constitutional functions and responsibilities. This is because the constitutionally guaranteed rights of the people are not made subject to the availability of finance. In this day and age with development partners and aid donors providing financial aid to governments, there is no longer any excuses for both the National and Provincial governments not to give effect to the clear dictates of Constitution section 225. Section 158(1) of the Constitution makes it very clear that the judicial authority of the people is vested in the National Judicial system. A National Court circuit to remote and outlying areas of the country and therefore the Province is simply exercising the judicial authority of the people at the grass root and community level. Many people at the grass root level have never been to nor seen the courts exercise the judicial power of the people. A circuit such as this visit presents that perfect opportunity.

14. Using powers given to me by Section 225 of the Constitution I will make the following orders:

(1) That the West New Britain Provincial Government in full consultation with the National Government and the Bali-Vitu LLG build an appropriate Court house on Vitu Island or upgrade and maintain one of the existing buildings on the government station on Vitu Island to be used as the Court house for both the National Court and the District Court.

(2) The Court house is to be staffed with all necessary facilities for Court usage whenever it is on circuit to Vitu Island or Bali Island.

(3) The provision of adequate facilities referred to in Order 2 above include the building of a Rural Lock Up to hold prisoners and remandees as defined under the Corrective Services Act.

(4) The President of Bali – Vitu LLG, Mr Peter Baule is hereby ordered to remain on Bali Island to assist the LLG and the Provincial Government in their negotiations to secure a suitable land to build appropriate Court infrastructure and facilities in this two locations.

(5) For avoidance of doubt, these Orders (No.1, 2, & 3) will be extended to all other National Court designated places including Hoskins, Bialla, Vitu. Bali, Cape Gloucester, Kandrian and Gasmatta with the building of a separate court houses on Vitu and Bali islands taking priority.

(6) The West New Britain Provincial Government is given one year as from the 8th June 2011 to secure adequate funding to commencing building the court house and the provision of adequate facilities commencing with Vitu Island.

(7) Such a building must be built immediately and within one year of the Orders coming into force and the National Court will review these Orders every three months after they come into force.

(8) These Orders will apply as against the Independent State of Papua New Guinea, the West New Britain Provincial Government, the relevant Local Level Government who shall all ensure that adequate facilities are provided to ensure that the National Court carries out and perform its constitutional functions and responsibilities unhindered.

These Orders are in effect immediately and time is abridged for their entry.
Orders accordingly
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